pThe defendant, Annternette Denise Lattin, was charged by bill of information with home invasion, in violation of La. R.S. 14:62.8. Following a jury trial, she was found guilty of the responsive verdict of unauthorized entry of an inhabited dwelling, a violation of La. R.S. 14:62.3. The trial court sentenced the defendant to serve one year in prison at hard labor. The sentence was suspended, and she was placed on supervised probation for a period of one year. Additionally, the court ordered the defendant to pay court costs or serve 30 days in the parish jail in lieu of payment. For the following reasons, we affirm the defendant’s conviction. We vacate the defendant’s sentence and remand this matter to the trial court with instructions.
FACTS
The'defendant, Annternette Lattin, and James Leachman were involved in a rеlationship, which resulted in the birth of “Frank.”
The events thereafter became a matter of dispute during the trial. It is undisputed that neither Leachman nor the defendant had a court order with regard to the custody of Frank. Leachman testified that the defendant relinquished custody of Frank to him when Frank was two months old and the сhild has lived with him since that time.
On November 26, 2014, the defendant and her sister, Kenya Houston, went to Leachman’s apartment and asked to visit Frank. Leachman shared the apartment with his girlfriend, Miriam Victoria Ochoa, Frank, and the three-year-old daughter Leachman shared with Ochoa.
Whеn the defendant and Houston arrived at the apartment, Leachman answered the door and allowed Frank to visit with them on the “porch” of the apartment. Meanwhile, Ochoa took her daughter to a bedroom located in the rear of the apartment.
Leachman testified as follows: when the defendant arrived, Frank appeared nervous and stated to him, “[D]on’t leave mе[;] just watch”; the defendant knelt down to hug Frank; he heard the defendant say, “I should just take him”; the defendant picked Frank up and attempted to “break and run with him”; he “grabbed” Frank to prevent the defendant from fleeing with him; Houston “jumped in” and a struggle ensued between Leach-man, the defendant and Houston; he managed to pull Frank from the defendant’s lagrasp; he pushed Frank into the apartment; the defendаnt called an unidentified man for assistance; before the man reached the front porch, he (Leachman) hurried inside the apartment and shut the door; the defendant, Houston and the unidentified man forcibly opened the door and entered the apartment; Frank retreated to a back bedroom where Ochoa and her daughter were located; an altercation ensuеd between him, the defendant, Houston and the unidentified man; the defendant, Houston and the unidentified man attempted to walk toward the back bedroom where Frank had gone; he attempted to block their path; the defendant, Houston and the man began “punching and scratching” him; the defendant, Houston and the man reached the back bedroom where Ochoa and the children were located; he “tried to fight them off’; the defendant, Houston and the man opened the bedroom door, grabbed Ochoa by her hair and “started yanking on her head” in an attempt to pull her out of the bedroom; “an all-out battle royal” ensued; “everybody” began to “tussle”; Ochoa fled the bedroom with her daughter; the defendant, Houston and the man attacked him as he held Frank; he managed to shield Frank from most of the blows; during the struggle, the defendant grabbled his testicles and pulled them; the defendant also grabbed Frank’s neck and began “twisting it”; the defendant stopped twisting Frank’s neck after he (Leachman) warned her that she could “break it”; the male accomplice told him “Just let [Frank] go, man. Just let him go”; he refused to let go of Frank; the altercation continued until police officers arrived;
During his direct testimony, Leachman identified photographs taken on the night of the incident. The photographs were admitted into evidence and shown to the jury.
Miriam Ochoa testified as follows: she and -Leachman were in their apartment when they heard a knock at the door; when she saw that the defendant was at the door, she took her daughter into the bedroom; soon thereafter, she heard “a lot of yelling and screaming”; she left the bedroom and walked toward the front door; she- saw the defendant “and two other people” trying to force their way through the door; Leachman tried to push Prank inside the apartment; she attempted to “hold the door” to. prevent the dеfendant and the others from entering the apartment; the defendant and the others forced their way inside the apartment; she “grabbed the two kids and ran to the bedroom”; the bedroom door did not have a lock, so she attempted to hold the door to prevent the defendant and the others from entering the bedroom; “someone” reached inside a crack in the bedroom doоr, grabbed her by her hair and, began pulling her .hair; the group gained entry into the |fibedroom and the altercation between Leachman, the defendant, Houston and the man continued; she took her daughter and escaped from the apartment; she “started calling the police”; the apartment manager had already called the police department; and when the poliсe officer arrived, she directed him to the apartment.
Corporal Phillip Tucker was on patrol that night for the Shreveport Police Department. Cpl. Tucker testified as follows: on November 26, 2014, he was dispatched to Leachman’s apartment in response to a 911 call; he arrived at the apartment complex and observed Ochoa flagging down his patrol car; he wеnt inside the apartment and. saw Houston standing in the hallway leading to the bedroom, the defendant sitting on the bedroom floor and Leachman sitting on the edge of the bed; the unidentified man was not in the apartment when he. arrived; he observed that Leachman and the defendant appeared to be “physically exhausted” and “appeared to have been in a physical alterсation”; he followed police protocol by' separating the individuals and interviewing them separately; when he completed his questioning, he took photographs of the apartment, Leachman, Ochoa and Frank; and he arrested the defendant and Houston.
The defendant testified as follows: she and Leachman shared custody of Frank until she moved to Memphis;
After hearing the testimony and reviewing the evidence, the jury found the defendant guilty of the responsive verdict of unаuthorized entry of an inhabited dwelling, in violation of La. R.S. 14:62.3. The defendant was sentenced to serve one year in prison at hard labor. The trial court stated that the; defendant’s sentence would be suspended;, thereafter, he stated that the sentence would be “deferred.” The defendant was placed on supervised probation for a period of one year. Subsequently, the trial cоurt denied the defendant’s motion for post-verdict judgment of acquittal.
The defendant appeals. -
DISCUSSION
The defendant contends the evidence was insufficient, to support her conviction for unauthorized entry of' an inhabited dwelling. She argues that she was involuntarily pulled into Leachman’s apartment and did not enter without permission.
The standard of review of a sufficiency of the evidence claim is whether, after viewing the evidence in the. light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia,
The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of the evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence, and inferred frоm the circumstances established by that evidence, must be sufficient for a rational trier of fact to conclude, beyond a reasonable doubt, that the defendant was guilty of every essential element of the crime. State v. Sutton,
Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Broome, 49, 004 (La.App. 2 Cir. 4/9/14),
The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95),
It is the province of the jury to resolve conflicting inferences from the evidence. State v. Johnson, 38,927 (La.App. 2 Cir. 11/23/04),
La. R.S. 14:62.3(A) defines the unauthorized entry of an inhabited dwelling as follows:
[T]he intentional entry by the person without authorization into any inhabited dwelling or other structure belonging to another and used in whole or in part as a home or place of abode by a person.
Under this statute, an unauthorized entry is an entry without consent, express or implied. State v. Ortiz, 96-1609 (La. 10/21/97),
In the instant case, it is undisputed that the defendant entered Leachman’s apartment, an inhabited dwelling used in whole or in part as a home or place of abode. The primary fact in dispute is whether the defendant intentionally entered the residence without authorization.
In the instant case, Leachman and Ochoa testified that the defendant, Houston and an unidentified man fоrcibly entered their apartment without their authorization. Leachman testified that he attempted to barricade the door with his body, as the defendant and her accomplices physically forced their way into the apartment. That testimony was corroborated by Ochoa, who testified that she attempted to “hold the door” to prevent the defendant and her accomplices from entering.
The argument urged by the defendant regards a credibility determination by the jury. It is evident from the verdict that the jury believed and found credible the testimony of Leachman and Ochoa. The Intestimony was sufficient to establish that the defendant intentionally entered an inhabited dwelling without authorization. Accordingly, -viewed in the light most favorable to the prosecution, the evidence in this record is clearly sufficient to prove beyond a reasonable doubt that the defendant committed the crime of unauthorized entry of an inhabited dwelling. This argument is without merit.
ERROR PATENT
In accordance with La. C.Cr.P. art. 920, this Court has thoroughly reviewed this record for errors patent. We have found two errors patent in the sentencing proceedings.
At sentencing, the trial court sentenced the defendant under the prоvisions of La. C.Cr.P. art. 893. Specifically, the court stated: •
The Court agrees to defer sentencing in accordance with [La. R.S. 14:62.3 and] Article 893 of the Code of Criminal Procedure.
For the record, the agreed sentence is one year at hard labor suspended, one year active supervised probation. The Court so places you on one year active supervised probation with the Louisiana Department of Probation and Parole[.]
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[I]t’s not an agreed sentence so I have to advise her of the appeal rights *** even though it’s a deferred sentence.
(Emphasis added).
| ^Pursuant to Article 893, the trial court has the discretion to either defer or suspend a defendant’s sentence. However, it is unclear from this record whether the trial court intended to defer or suspend the defendant’s sentence. As noted above,
Additionally, the trial court erroneously ordered the defendant to pay court costs or serve 30 days in the parish jail in lieu of payment. An indigent, defendant cannot be subjected to default jail time in lieu of the payment of a fíne, costs or restitution. State v. Lewis, 48,373 (La.App. 2 Cir. 9/25/13),
In the instant case, the defendant’s indigent status has been shown by her representation at trial by the, indigent defender’s office and her current representation on appeal by the Louisiana Appellate Project. Thus, the imposition of default jail time by the trial court was in error. Accordingly, we hereby instruct the trial court to delete that portion of the defendant’s sentence that includes default jail time for failure to pay court costs.
^CONCLUSION
For the above reasons, the defendant’s conviction is affirmed. We vacate the defendant’s sentence and'remand this matter to the trial court for resentencing with instructions.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED WITH INSTRUCTIONS FOR RESEN-TENCING.
Notes
. Frank’s date of birth is February 26, 2010.
. Leachman testified that when Frank was approximately two months old, he received a telephone call from the defendant, who threatened to “throw [Frank] in the trash." He stated that he left work and picked Frank up; Frank has lived with him ever since that incident. Leachman also testified that on one occasion, the defendant picked up Frank from his home under the guise of taking the child to a local park. Instеad, the defendant took the child to Memphis, Tennessee. At some point, Leachman regained custody of Frank.
The defendant denied threatening to throw Frank into the trash and she denied ever taking Frank to Memphis without Leachman’s knowledge.
. Ochoa witnessed the unidentified man fleeing shortly before the police officers arrived.
. The photographs depict the condition of the apartment after the altercation and the injuries sustained by Leachman, Ochoa and Frank. Some of the photographs were taken by police officers; others were taken by either Leachman or Ochoa.
. It is not clear from the record when the defendant “moved to Memphis." She testified that she has spent her life moving back and forth between Shreveport and Memphis.
. The'defendant testified that she contacted the Shreveport Police Department “several times” to assist her in regaining custody of Frank. According to the defendant, she was told that the police department could not assist her because Leachman had not taken Frank out of the state.
. It is unclear from this record whether the defendant’s brother was -the unidentified man described by Leachman and Ochoa.
. The court minutes from the date of sentencing provide:
*** THE defendant WAS SENTENCED UNDER THE PROVISIONS OF ARTICLE 893 OF THE CODE OF CRIMINAL PROCEDURE *** TO BE CONFINED AT HARD LABOR FOR A PERIOD OF ONE (1) YEAR AND COMMITTED TO THE LOUISIANA DEPARTMENT OF CORRECTIONS[.] THE COURT ORDERED THE JAIL SENTENCE TO BE SUSPENDED AND THE DEFENDANT PLACED ON SUPERVISED PROBATION FOR A PERIOD OF ONE (1) YEAR[.]
(Emphasis added).